UK Government Union Capability

Lord Thomas of Gresford Excerpts

Thursday 1st July 2021 Lords Chamber

[Lord Thomas of Gresford (LD) [V]]

My Lords, Sir Jeffrey Donaldson, the new leader of the DUP, said this morning:

“The Northern Ireland Protocol represents the greatest threat to the economic integrity of the United Kingdom in any of our lifetimes.”


The United Kingdom Government thrust upon one of the four constituent parts of the UK a vital constitutional and economic framework without consultation. The DUP has no ownership of any part of it. I entirely understand unionists’ frustrations, although I disagree with their stance and rhetoric.

The review of the noble Lord, Lord Dunlop, points to an entirely new structure and an approach to devolution which would largely prevent these strains on the coherence of the union. I welcome his review and recommendations and I, too, regret very much that it took so long to publish it and to address its important first two propositions. The progress report makes it clear that, although there is some movement forward, there is as yet no agreement on the structure and responsibilities of the UK Government and devolved Administrations council. Will the Minister kindly update us on that issue and on the current state of any discussions?

In their report, Reforming Our Union, referred to by the noble Lord, Lord Murphy, and published on Tuesday, the Welsh Government point out that there has not been a plenary meeting of the Joint Ministerial Council—the existing, feeble body for discussions on devolution—for 12 months. Mr Drakeford declares that

“it has become harder and harder to make the case for the Union, and the threat to it has never been greater during my lifetime.”

He rightly says that when the UK Government act in an aggressively unilateral way on behalf of the whole UK, without regard for the status of the nations and the democratic mandate of the Government, that inevitably creates anger and alienation. I commend the report as an excellent contribution to the debate. I regret that that is as far as my Japanese haiku—or Welsh cynghanedd—of a speech can take me.

Protocol on Ireland/Northern Ireland

Lord Thomas of Gresford Excerpts

Thursday 24th June 2021 Lords Chamber

Asked by

[Lord Thomas of Gresford]

To ask the Minister of State at the Cabinet Office (Lord Frost) what steps he is taking to promote bilateral negotiations with the European Union to facilitate the implementation of the Protocol on Ireland/Northern Ireland.

[The Minister of State, Cabinet Office (Lord Frost) (Con)]

My Lords, the Government are working hard and in good faith to resolve outstanding issues with the Northern Ireland protocol, including by providing the EU with more than a dozen detailed proposals on the way forward. We continue to look to make progress in these discussions, but the situation is now urgent. If we cannot find solutions, we have to consider all options to meet our obligations to support peace, prosperity and stability in Northern Ireland.

[Lord Thomas of Gresford (LD) [V]]

My Lords, in the light of the encouraging report last night that there is a prospect of agreement with the EU on extending the grace period in Northern Ireland in certain areas, can the Minister confirm that the Government have abandoned threats of unilateral action as a fruitless negotiating tactic and intend henceforth to solve problems through the dispute resolution mechanisms agreed within the protocol?

Standards in Public Life Report

Lord Thomas of Gresford Excerpts

Thursday 17th June 2021 Lords Chamber

[Lord True (Con)]

My Lords, again, I will not comment on individuals. We have discussed this before, and I maintain the view that the Prime Minister’s constitutional role means that he or she has overall responsibility for the organisation of the Executive and the implementation of the Ministerial Code. The committee’s interim report has made some observations on the code, and obviously we will consider those carefully.

[Lord Thomas of Gresford (LD) [V]]

My Lords, do the Government accept the committee’s recommendation that a finding of a breach of the Ministerial Code by the independent adviser should be final? If not, should not the Prime Minister’s role in reviewing his findings be quasi-judicial, as in other areas where Ministers are required to make judgments, necessitating his personal, impartial reconsideration of the case and the giving in writing of his reasons for reversing the decision?

UK Policy Implementation for Wales and Scotland

Lord Thomas of Gresford Excerpts

Wednesday 19th May 2021 Lords Chamber

[Lord True (Con)]

My Lords, let us begin where we begin—with the forthcoming summit. I am grateful to the noble Lord for welcoming the Prime Minister’s initiative. I agree with what the noble Lord said about the fundamental importance of economic recovery. Again, repeating what I said earlier, I am sure that everyone in all parts of this kingdom will put their shoulders behind it.

[Lord Thomas of Gresford (LD) [V]]

The Conservative Member of Parliament for Aberconwy promised Conwy County Borough Council at a recent meeting access to a £20 million capital sum from the levelling-up fund and £3 million from the community renewal fund. Money from the shared prosperity fund, he indicated, would go directly to that council. Is it government policy that Members of Parliament should be announcing largesse in this way? What discussions have there been or will there be with the Welsh Government about the sharing out of public money in Wales?

[Lord True (Con)]

My Lords, with all respect, I regret to say that the minutes of Conwy County Borough Council are not on my reading list, but obviously I will add them to it instantly. The spending power will cover infrastructure, economic development, culture and sport, and will support education and training activities and exchanges in the UK and internationally. It will complement the devolved Administrations’ existing powers and will allow the UK Government to deliver investment more flexibly and dynamically. It will also strengthen the support given to citizens and businesses in Scotland, Northern Ireland and Wales without taking any responsibilities away from the devolved Administrations.

Police and Crime Commissioner Elections (Welsh Forms) Order 2021

Lord Thomas of Gresford Excerpts

Thursday 4th March 2021 Lords Chamber

[Lord Thomas of Gresford (LD) [V]]

My Lords, the noble Lord, Lord Hain, has put before me a mirage of Trump-like volunteers wheeling wheelbarrows of votes for police and crime commissioner elections; I wait for the day.

I very much welcome this instrument. It has to be emphasised that the use of Welsh in government forms strengthens confidence in the general use of the language. The Welsh Language Advisory Group is doing a very good job and the use of Welsh is widening. I am currently on an excellent course in improving my language skills with students not just from the locality but from Swansea to Devizes, Manchester and Edinburgh; that is one of the joys of Zooming.

These forms are written in formal Welsh, possibly with a touch of tafodiaith y gogledd about them—I sincerely hope that they can be understood all right further down there. Of course, Welsh is not spoken everywhere in Wales and the bilingual forms are valuable. In my part of Wales, the response to the intervention of the police is more likely to be in robust Anglo-Saxon. My father recalled patrolling Town Hill in Wrexham as a young policeman, with a new recruit from a chapel-going, Welsh-speaking area further to the west. A local, tumbling out of the Vaults at closing time, started abusing them, Anglo-Saxon-wise. The new policeman took off his uniform jacket and handed it to my father, saying, in Welsh: “Here, Hywel, hang on to this. I’ve got my rights.” A fight broke out, with a crowd gathering around urging the local on while my father stood holding his mate’s coat. Those were the days of proper policing, before they invented those new-fangled police commissioners. History does not record what the magistrates said.

I look forward to the maiden speech of the noble Lord, Lord Hannan, on this topic. We shall certainly be looking forward to the results of the next police commissioner elections in north Wales, wheelbarrows of votes of not, with a better-informed electorate.

Covid-19: Vaccination Passport

Lord Thomas of Gresford Excerpts

Wednesday 24th February 2021 Lords Chamber

[Lord True (Con)]

The noble Baroness, as always, make a profound point, which is that the best thing that we must wish and work for is that all Administrations work together on this. We do not want internal divides. My right honourable friend the Chancellor of the Duchy of Lancaster is speaking further to First Ministers today, which is another opportunity to reflect on the details of the published road maps. I take what she said: we will continue to work with the devolved Administrations to reflect on the implications of the road maps, and to co-ordinate and co-operate on our response to this and other areas.

[Lord Thomas of Gresford (LD) [V]]

My Lords, I live five miles from the English border, and I am relieved that the noble Lord, Lord Foulkes, is not pressing for a passport, with 15,000 vehicles going one way and 32,000 coming the other way to work, every day. Referring to the discussions that the Minister mentioned, what is the Government’s attitude to people coming to this country who have been vaccinated by a non-approved vaccine, and are they discussing this with other countries?

[Lord True (Con)]

My Lords, I confess that I cannot find the answer to that at the moment. I will write to the noble Lord on that point. I apologise for not being able to answer it now.

EU-UK Trade and Cooperation Agreement

Lord Thomas of Gresford Excerpts

Friday 8th January 2021 Lords Chamber

[Lord Thomas of Gresford (LD) [V]]

I will make three points on the surrender of suspects or convicted persons, previously dealt with under the European arrest warrant. First, according to article 136, under part 3, title XII of the agreement, in the event of the United Kingdom or the European Union denouncing the European Convention on Human Rights, the whole of part 3, all the security provisions, will

“cease to be in force”.

What does this mean? If, as a result of the committee of the noble Lord, Lord Foulkes, it becomes government policy to withdraw from the ECHR, do all the arrangements in the agreement for co-operation and security matters automatically fall? How do you denounce—that is the word used—the convention? Do you have to go, like Martin Luther, to the cathedral in Württemberg and hammer your denunciation upon the door?

Secondly, since all 27 EU countries are placed into Part 1 of the Extradition Act 2003, a request for surrender by an EU country will, unless the person requested consents, result in a court hearing. The agreement provides time limits for compliance with the request. If the alleged criminal comes within the financial limits, he is automatically entitled to legal aid, whatever the merits of his case. What consideration has been given to the impact on our heavily overburdened courts? The noble Lord, Lord True, described this agreement as “streamlined”. I do not think so.

Finally, there are 22 countries out of the 27 that prevent or restrict extradition of their nationals who are third country, which is what we have become. For example, the German constitution forbids it. Will we be extraditing our nationals to Europe without any reciprocity by those states? I appreciate the Minister’s burden today but would welcome a written response.

European Union Withdrawal (Consequential Modifications) (EU Exit) Regulations 2020

Lord Thomas of Gresford Excerpts

Monday 30th November 2020 Grand Committee

[Lord Thomas of Gresford (LD) [V]]

In 32 days’ time, the whole body of law concerning our relationship with the European Union, developed over 48 years, will disappear, and we shall be entering new legal territory. Retained European law will be added to our domestic law—a whole body emanating from the directives and regulations that we have hitherto followed through our membership of the European Union. This was the effect of the European Union (Withdrawal) Act 2018. As I understand it, if we wish in future to depart from or change anything in retained EU law, we will do it by the normal processes of Westminster legislation. Ambulatory provisions in European regulations, which provided for an automatic update in accordance with changes in European law, will cease.

All that was difficult enough, but understandable. However, as a result of the withdrawal agreement that was finally concluded earlier this year, the European Union (Withdrawal Agreement) Act 2020 was taken through Parliament. One purpose of that Act was to replace references to exit day with “IP completion day”; the changes made by the 2018 Act were, therefore, pushed back from exit day—the day when we left the European Union, at the end of last January—to 1 January next.

Another purpose of the 2020 Act was to fulfil the promise made in the Conservative 2019 manifesto that all British courts, down to and including magistrates’ courts, could throw off the burden of EU case law and principles, as interpreted by the European Court of Justice. The thinking behind that was not to promote the clarity and stability of our domestic law: it was, as I said in Grand Committee last week, the expression of the Conservative Party’s allergy to the European Court of Justice—an itch which has to be scratched.

As the 2020 Act required, there was extensive consultation of 73 bodies, encompassing the whole legal and judicial community. The manifesto commitment had by this time been watered down to a proposal that only the courts at Court of Appeal level should be able to depart from the precedents set in Europe. Only 20% of the consultees were in favour of this proposal, as we discussed last week; 80% were either wholly against it or did not support it. The Minister will no doubt be interested to hear that the noble and learned Lord, the Advocate-General for Scotland, in introducing the rejected proposals last week, nevertheless told us that we could be reassured by the fact that consultation had taken place. He did not actually mention the result of the consultation. Well, there is no such problem here, as there has been not the slightest consultation over these regulations—yet they, too, are supposed to introduce sweetness and light.

Unfortunately, the 2020 Act introduced the new concept of the “relevant separation agreement law”, which provides that any question as to the validity, meaning or effect of any “relevant separation agreement law” is to be decided in accordance with the withdrawal agreement and the like agreements and is to be consistent with various articles of the withdrawal agreement—and not just the current articles that are in issue, because the definition of “relevant separation agreement law” is widened by a final coda saying

“as that body of law is added to or otherwise modified by or under this Act or by other domestic law from time to time”.

Any lawyer trying to advise a business client as to his position with regard to, say, contractual or intellectual property rights already has a difficult task. Any individual embarking on litigation to sort out a dispute faces extensive legal costs and untold worry.

However, that is not the end under these regulations. Paragraph 6.6 of the Explanatory Memorandum tells us that the provisions of the European Union (Withdrawal) Act and the amendments made to that Act by the 2020 Act

“mean that it is possible for EU instruments to form part of retained EU law for some purposes and have effect as relevant separation agreement law for other purposes. This means that after IP Completion Day”—

in 32 days’ time—

“references to EU instruments in domestic legislation can have a dual meaning. For example, referring to the original version of the EU instrument that has effect as relevant separation agreement law for some purposes and referring to the domesticated version of the EU instrument that forms part of RDEUL for other purposes.”

So, in these regulations we are now importing into our domestic law retained EU law as amended by relevant separation agreement law, and any future amendment of it, as interpreted in the articles of the withdrawal agreements—and references to EU instruments in domestic law can have a dual meaning. Incidentally, the Northern Ireland protocol is part of the withdrawal agreement and is already under fire, with power to make regulations to break the law included in the UKIM Bill as drafted. We will have to see how that turns out.

For the sake of the sanity of the Court of Appeal and the Supreme Court, will the Minister kindly tell us how this dual meaning is supposed to take effect? What exactly are the separate dual meanings and for what purposes will one meaning be applicable in relevant separation agreement law and one in the domesticated version that is to form part of the retained domestic EU law? I cannot think of any legislation with a dual meaning for the same wording in the same provision which is to be interpreted differently in different legal contexts. I am willing to be enlightened.

I cannot expect the Minister to sort out this mess at the Dispatch Box, but I would be grateful if a memorandum could be prepared and published to make the position clear for lawyers advising their clients and judges seeking to interpret already complicated provisions of law. In any sensible legislative body, this instrument would be withdrawn and reformulated. Unhappily, so ineffective and weak are the procedures of the United Kingdom Parliament in scrutinising secondary legislation—as we are supposed to be doing now—that this instrument will go through in its present form. God help those who have to interpret it.

[The Deputy Chairman of Committees (Lord Lexden) (Con)]

I call again the noble Lord, Lord Bhatia, in the hope that we shall be able to hear him this time.

Parliamentary Constituencies Bill

Lord Thomas of Gresford Excerpts

Report stage & Report stage (Hansard) & Report stage (Hansard): House of Lords
Thursday 8th October 2020 Lords Chamber

[Lord Janvrin (CB)]

I support the amendment in the name of the noble and learned Lord, Lord Thomas; I do so because the impartiality and independence of the Boundary Commission assumes greater importance if automaticity of the implementation of the commission’s findings is accepted under this Bill. I readily accept that the Government understand this, as the Minister pointed out so clearly in Committee. If that is so, it surely makes sense to consider ways to strengthen the impartiality and independence of the commission to meet these new circumstances. The three proposals put forward by the noble and learned Lord, Lord Thomas, in this amendment to achieve this are simple and straightforward and he explained them comprehensively in moving the amendment.

The appointment of the deputy chairman by the head of the judiciary, rather than a political Minister, is a reversion to the practice before 2005, when the nature of the Lord Chancellor’s role changed. It brings England, Wales, Scotland and Northern Ireland into line. It would significantly reduce the scope for accusations of political interference, whether real or perceived, in the future.

Changing the appointments process to one more akin to judicial appointments follows the same logic. It is not a criticism of the public appointments system but a recognition that appointing members of the Boundary Commissions must be seen to be in a special and quasi-judicial category. They are crucial arbiters of the integrity of our electoral system. The introduction of non-renewable terms of appointment merely brings these appointments to the Boundary Commissions into line with other constitutional and political watchdogs and regulators.

As has been said, this is about reality and, above all, perception. We are talking about small changes aimed at strengthening the real and perceived impartiality of those who define the framework of our electoral system. We are talking about small changes, but they are changes that might increase trust in elections, politics and the way we are governed. I strongly support this amendment.

[Lord Thomas of Gresford (LD) [V]]

My Lords, I was unable to take part in the Second Reading or the Committee stage of the Bill, but I have read Hansard in full. The importance of the issue raised by this amendment is such that I had to support the noble and learned Lord, Lord Thomas of Cwmgiedd, in this debate. What struck me was that the Minister’s reply in Committee was a stout defence of the status quo as regards the appointment of commissioners. It did not recognise the fundamental change to our democracy made by this Bill. The exclusion of any parliamentary procedure to approve the recommendations of the commissioners is presumably designed to prevent any suggestion of gerrymandering. The political party in power, with a sufficient majority, could control the alteration of constituency boundaries. I welcome, therefore, the change.

The fact, however, that the final shape of the boundaries is determined by the commissioners’ recommendations in their report, without any parliamentary oversight or scrutiny, means that they must be—and must be seen to be—completely impartial. I have attended Boundary Commission hearings where I have endeavoured to put forward the case most favourable to my party—and representatives of other parties present did precisely the same. The commissioners, who are not as familiar with the political geography of a constituency as are the party hacks pleading their cases before them, must consider the evidence of population changes and the submissions made to them. In so doing they are obviously acting in a judicial capacity, as the noble and learned Lord, Lord Thomas, has made clear.

The boundary change that affected me most personally was in 1983, when I was the candidate in Wrexham and the sitting Labour Member of Parliament, Tom Ellis, joined the SDP. Naturally I stood down in his favour at the next election, and as it approached I thought I was out of the contest. However, the boundary commissioners stepped in and created a new constituency called Clwyd, South-West. Since Tom was born and bred in Rhosllanerchrugog, part of the new constituency, he moved there, and I, born and bred in Wrexham, fought Wrexham. Needless to say, we both lost. In Tom’s constituency, the previous Labour vote was split: 13,000 went to the SDP and Labour’s candidate, Denis Carter—the much-respected Chief Whip in the Lords in 1997—came third, with 11,000. The Tories won with 14,000. A later Conservative candidate for that constituency was an unlikely old Etonian by the name of Boris Johnson. He lost.

I hope that I may be forgiven for this anecdote: I mention it to illustrate how crucial the decisions of the Boundary Commission can be in the lives and careers of individuals and the life of political parties. The noble and learned Lord, Lord Thomas of Cwmgiedd, has put forward a proposal that ensures the impartiality of the Boundary Commissions. In Committee, the Minister did not explain why there should be a distinction between England and Wales on the one hand, and Scotland and Northern Ireland on the other, in making appointments. Why should a political figure with his own constituency to nurse, the Lord Chancellor, appoint the commissioners in England and Wales? The only reason given by the Minister was that it has always been so. However, he knows that the nature of the office has fundamentally changed, and by this Bill so too is the role of the commissioners: they have the final say. That is a clear and obvious distinction, and is very different from the normal run of public appointments.

Secondly, the amendment calls for an independent panel to consider the applications and to put forward to the Secretary of State not a choice but a single name, which may be rejected, but only on the single ground that the candidate is unsuitable. Furthermore, if the candidate is rejected, the Secretary of State must give his reasons, and such reasons could, if necessary, be scrutinised by way of judicial review, which would test the legality and rationality of the decision. That is another safeguard against political bias.

Finally, the noble and learned Lord, Lord Thomas, proposes that the appointment should be for a single non-renewable term. That is entirely appropriate, given that the members of the panel have to make a quasi-judicial decision. That is why we give tenure, as other noble Lords have said, to our judges. The decision must be seen to be uninfluenced by the fear that it will upset the political interests of the ruling party, or by the hope of re-appointment. I wholly support this amendment.

--- Later in debate ---

The Government have already accepted the principle that some constituencies— islands, for example—have such distinctive features that they cannot be shoehorned into the Government’s balance-sheet approach to the electorate. I welcome the inclusion of Ynys Môn in this list, but it is certainly not the same as the Isle of Wight. For example, there is a road bridge across to Ynys Môn, which makes a big difference to your awareness of it as an island. I would say that what is good for Ynys Môn is also good for Powys. I acknowledge the issues this raises, but deep rurality and sparse population are surely important characteristics that should be taken into account. I urge the Government, even at this point, to consider this issue in relation to these two constituencies.

[Lord Thomas of Gresford (LD) [V]]

My Lords, I must declare an interest, in that my grandfather was from Llanfihangel-yng-Ngwynfa in the deepest rural part of Montgomeryshire. The boundary commissioners proposed in 2016 to link north Montgomeryshire with South Clwyd. I suspect that that proposal may be once more on the table following this Bill—it looks all right on a map.

Earlier this year, when I was recuperating from illness, I persuaded my wife, the noble Baroness, Lady Walmsley, to drive me over the Berwyn mountains from the valley of the River Dee. We took the mountain road from Glyndyfrdwy, in Denbighshire and in the South Clwyd constituency. Unfortunately, I had forgotten that the tarmac runs out at the bwlch—the top—and that the track thereafter was unfit for motor vehicles. Naturally, I insisted on going on. It was a hair-raising experience for the noble Baroness. We bottomed out on the fissured and deeply rutted track a few “expletives deleted” times. The only vehicle we met belonged to some Midlander holidaymakers bumping along, who had lost their way blindly following the satnav and were 10 miles adrift.

When we got down the other side of the mountain and the noble Baroness had calmed a little, we were in the Ceiriog Valley in a different county, the county of Wrexham. However, we were still in the Clwyd South constituency. The River Ceiriog runs along a high-sided valley into the River Dee some 20 miles to the east at the English border. We had to go west over another mountain on a single track road, fortunately this time tarmacked, to reach Llanrhaeadr-ym-Mochnant, once in the Denbigh constituency, but now in Montgomeryshire. There, we were in the Tanat Valley. The River Tanat runs into the Severn, again far to the east over the English border.

There was another range to surmount to arrive in the valley of the River Vyrnwy and yet another range between us and the Severn valley around Newtown. To get from where we started in Clwyd South to the nearest point of Montgomeryshire by an ordinary double track road, would have been a 30-mile trip through Oswestry in England and a 60-mile trip to Newtown. The geography of Wales is such that the main rivers run from west to east. The Severn traverses Montgomeryshire to Shrewsbury and the Wye crosses Brecon and Radnor to Hereford. Between these two major river valleys there are mountains, through which there is a single winding road, the A483. This was termed the deadliest in Wales two years ago, with 4.3 fatalities per 10,000 inhabitants. To the west, over the waterfront, the rivers run the opposite direction, east to west, into Cardigan Bay in the constituency of Ceredigion. It is a long way to Aberystwyth, and I hope the Boundary Commission does not start adding or subtracting populations over there.

One cannot alter geography by Act of Parliament. Each valley contains individual communities where even the language changes and the accents vary. The noble Baroness, Lady Hayter, and the noble Lord, Lord Morris, made the same point in the debate on the fifth group today. This is where the concept of strict quotas falls down. The Government suggested and will no doubt cling to the 5% variant either way. Fortunately, we have now voted to extend it, and I trust Government will not seek to reverse our decision. The Minister said he wanted Wales to be fairly represented and that really does not depend upon meeting quotas of voters.

Each of these two constituencies has approximately 55,000 voters, and each has huge and difficult terrain. If the tie between MP and constituent is to mean anything, it is senseless to carve up these communities. Over such a wide and diverse area where the geography separates communities, it is not surprising the problems for an MP are various, diverse, and unique. I agree with the noble Lord, Lord Blunkett, speaking earlier today, that there should be a community link, a common interest, so that an MP can speak for that community, one hopes with a single voice.

However, I must consider what effect the permanent maintenance of an untouchable pair of constituencies would have on adjoining constituencies to the north, west and south. In the end, I fear an even worse melange may be the result. In the debate on group 5, my noble friend Lord Rennard made a passionate plea for flexibility, and I entirely agree. It is for that reason only that I fear I cannot support either amendment, but I hope that the Boundary Commissioners, when they meet, take into account the special problems of the county of Powys, act flexibly and come up with something more sensible than the proposals of 2016.